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AGENCY:

Administrative Conference of the United States.

ACTION:

Notice.

SUMMARY:

The Administrative Conference of the United States adopted four recommendations at its Seventy-first Plenary Session. The appended recommendations address Agency Guidance Through Interpretive Rules, Agency Recruitment and Selection of Administrative Law Judges, Public Availability of Agency Guidance Documents, and Revised Model Rules for Implementation of the Equal Access to Justice Act.

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FOR FURTHER INFORMATION CONTACT:

For Recommendation 2019-1, Todd Rubin; for Recommendations 2019-2 and 2019-4, Alexandria Tindall Webb; and for Recommendation 2019-3, Todd Phillips. For each of these actions the address and telephone number are: Administrative Conference of the United States, Suite 706 South, 1120 20th Street NW, Washington, DC 20036; Telephone 202-480-2080.

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SUPPLEMENTARY INFORMATION:

The Administrative Conference Act, 5 U.S.C. 591-596, established the Administrative Conference of the United States. The Conference studies the efficiency, adequacy, and fairness of the administrative procedures used by Federal agencies and makes recommendations to agencies, the President, Congress, and the Judicial Conference of the United States for procedural improvements (5 U.S.C. 594(1)). For further information about the Conference and its activities, see www.acus.gov. At its Seventy-first Plenary Session, held on June 13, 2019, the Assembly of the Conference adopted four recommendations.

Recommendation 2019-1, Agency Guidance Through Interpretive Rules identifies ways agencies can offer the public the opportunity to propose alternative approaches to those presented in an interpretive rule and to encourage, when appropriate, public participation in the adoption or modification of interpretive rules. It largely extends the best practices for statements of policy adopted in Recommendation 2017-5, Agency Guidance Through Policy Statements, to interpretive rules, with appropriate modifications to account for differences between interpretive rules and policy statements.

Recommendation 2019-2, Agency Recruitment and Selection of Administrative Law Judges addresses the processes and procedures agencies should establish for exercising their authority under Executive Order 13,843 (2018) to hire administrative law judges (ALJs). It encourages agencies to advertise ALJ positions in order to reach a wide pool of applicants, to publish minimum qualifications and selection criteria for ALJ hiring, and to develop policies for the review of ALJ applications.

Recommendation 2019-3, Public Availability of Agency Guidance Documents offers best practices for promoting widespread availability of guidance documents on agency websites. It urges agencies to develop and disseminate internal policies for publishing, tracking, and obtaining input on guidance documents; post guidance documents online in a manner that facilitates public access; and undertake affirmative outreach to notify members of the public of new or updated guidance documents.

Recommendation 2019-4, Revised Model Rules for Implementation of the Equal Access to Justice Act revises the Conference's 1986 model agency procedural rules for addressing claims under the Act, which provides for the award of attorney fees to individuals and small businesses that prevail against the government in certain agency adjudications. The revisions reflect, among other things, changes in law and agency practice since 1986.

The Appendix below sets forth the full texts of these four recommendations. In addition, a Notice of Availability, containing the Revised Model Rules referenced in Recommendation 2019-4, is published elsewhere in this issue of the Federal Register. The Conference will transmit the recommendations to affected agencies, Congress, and the Judicial Conference of the United States, as appropriate. The recommendations are not binding, so the entities to which they are addressed will make decisions on their implementation.

The Conference based these recommendations on research reports that are posted at: https://www.acus.gov/​meetings-and-events/​plenary-meeting/​71st-plenary-session.

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Dated: August 2, 2019.

Shawne C. McGibbon,

General Counsel.

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Appendix—Recommendations of the Administrative Conference of the United States

Administrative Conference Recommendation 2019-1

Agency Guidance Through Interpretive Rules

Adopted June 13, 2019

The Administrative Procedure Act (APA) exempts policy statements and interpretive [1] rules from its requirements for the issuance of legislative rules, including notice and comment.[2] The Attorney General's Manual on the Administrative Procedure Act defines “general statements of policy” as agency statements “issued . . . to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power.” [3] The Manual similarly defines “interpretive rules” as “rules or statements issued by an agency to advise the public of the agency's construction of the statutes and rules which it administers.” [4] Because of the commonalities between policy statements and interpretive rules, including their advisory function, many scholars and government agencies have more recently adopted the umbrella term “guidance” to refer to both interpretive rules and policy statements.[5]

The Administrative Conference has issued several recommendations on policy statements.[6] The latest one, Recommendation Start Printed Page 389282017-5, Agency Guidance Through Policy Statements, offers best practices to agencies regarding policy statements. The Recommendation advises agencies not to treat policy statements as binding on the public and to take steps to make clear to the public that policy statements are nonbinding. It also suggests measures agencies could take to allow the public to propose alternative approaches to those contained in a policy statement and offers suggestions on how agencies can involve the public in adopting and modifying policy statements.[7]

During the discussion of Recommendation 2017-5, the Assembly considered whether to extend the recommendations therein to interpretive rules. The Assembly decided against doing so, but it expressed its views that a follow-on study addressing interpretive rules would be valuable.

This project takes up that charge. Policy statements and interpretive rules are similar in that they lack the force of law [8] and are often issued without notice-and-comment proceedings, as the APA permits. This similarity suggests that, as a matter of best practice, when interested persons disagree with the views expressed in an interpretive rule, the agency should allow them a fair opportunity to try to persuade the agency to revise or reconsider its interpretation. That is the practice that Recommendation 2017-5 already prescribes in the case of policy statements.[9] The benefits to the public of according such treatment, as well as the potential costs to agencies of according it, are largely the same regardless of whether a given guidance document is concerned with law, policy, or a combination of both.[10]

Recommendation 2017-5 provided that “[a]n agency should not use a policy statement to create a standard binding on the public, that is, as a standard with which noncompliance may form an independent basis for action in matters that determine the rights and obligations of any member of the public.” [11] Although the same basic idea should apply to interpretive rules, the concept of “binding” effect can give rise to misunderstanding in the context of those rules, for several reasons.

First, interpretive rules often use mandatory language when the agency is describing an existing statutory or regulatory requirement. Recommendation 2017-5 itself recognized the legitimacy of such phrasing.[12] For this reason, administrative lawyers sometimes describe such rules as “binding.” That common usage of words, however, can lead to confusion: It can impede efforts to make clear that interpretive rules should remain nonbinding in a different sense, i.e., that members of the public should be accorded a fair opportunity to request that such rules be modified, rescinded, or waived.

Second, discussions of the circumstances in which interpretive rules may or may not be “binding” bring to mind assumptions that stem from the case law construing the rulemaking exemption in the APA.[13] Courts and commentators have disagreed about whether, under that case law, interpretive rules may be binding on the agency that issues them.[14] Despite this diversity of views, officials interviewed for this project did not express the view that they would categorically deny private parties the opportunity to seek modification, rescission, or waiver of an interpretive rule. In this Recommendation, the Administrative Conference addresses only best practices and expresses no opinions about how the APA rulemaking exemption should be construed. Nevertheless, assumptions derived from the APA background can divert attention from consideration of what sound principles of administration require, which this Recommendation does address.

Third, administrative lawyers currently differ on the question of whether interpretive rules are effectively rendered “binding” when they are reviewed in court under the Auer v. Robbins[15] standard of review, which provides that an agency's interpretation of its own regulation becomes of “controlling weight” if it is not “plainly erroneous or inconsistent with the regulation.” [16] The question of whether interested persons should be able to ask an agency to modify, rescind, or waive an interpretive rule does not intrinsically have to turn on what level of deference the courts would later accord to the agency's interpretation. Indeed, the possibility of judicial deference at the appellate level (under Auer or any other standard of review) may augment the challenger's interest in raising this interpretive issue at the agency level.[17] Even so, the doctrinal debate over whether an interpretive rule is or is not “binding” under Auer can direct attention away from these practical considerations.

For these reasons, the Administrative Conference has worded the initial operative provisions of the Recommendation so that it avoids using the phrase “binding on the public.” Instead it urges that agencies not treat interpretive rules as setting independent standards for action and that interested persons should have a fair opportunity to seek modification, rescission, or waiver of an interpretive rule. In substance, this formulation expresses positions that largely correspond with prescriptions that Recommendation 2017-5 made regarding policy statements, but it does so without implicating unintended associations that the word “binding” might otherwise evoke.

What constitutes a fair opportunity to contest an interpretive rule will depend on the circumstances. Research conducted for Recommendation 2017-5 indicated that a variety of factors can deter affected persons from contesting guidance documents with which they disagree; these factors operate in approximately the same manner regardless of whether a policy statement or interpretive rule is involved.[18] Agencies that design procedures for requesting reconsideration or modification of both types of guidance should be attentive to circumstances that affect the practical ability of members of the public to avail themselves of the opportunity to be heard. The mere existence of an opportunity to contest an interpretive rule through an internal appeal may not be enough to afford a “fair opportunity” because of the very high process costs that pursuing such an appeal could entail.

At the same time, agencies should also consider governmental interests such as the agency's resource constraints and need for centralization.[19] For example, an agency should be able to deal summarily with requests that it finds to be obstructive, dilatory, or otherwise tendered in apparent bad faith. It should not be expected to entertain and respond in detail to repetitive or frivolous challenges to the agency's position. Additionally, Paragraph 3 recognizes that the need for coordination of multiple decision makers in a given program may justify requiring lower-level employees to adhere to the agency's interpretive rules.

The recommendations below pertaining to public participation in the formulation of interpretive rules closely track the public participation provisions of Recommendation 2017-5. The recommendations here have been modified to reflect differences between interpretive rules and statements of policy.

Paragraphs 12 through 15 set forth principles that agencies should consider in determining whether and how to invite members of the public to suggest alternative approaches or analyses to those spelled out in interpretive rules. These paragraphs are largely drawn from corresponding provisions Start Printed Page 38929in Recommendation 2017-5. Interpretive rules that lend themselves to alternative approaches include those that lay out several lawful options for the public but do not purport to be exhaustive. They may also include rules that, in setting forth decisional factors that are relevant to the meaning of a statute or regulation, leave open the possibility that other decisional factors might also be relevant. Typically, such rules speak at a general level, leaving space for informal adjustments and negotiation between the agency and interested persons [20] about how the rule should be applied. On the other hand, certain kinds of interpretive rules, such as those in which an agency has determined that a statutory term has only one construction (e.g., rules that take the view that certain conduct is categorically required or forbidden), do not lend themselves to such flexible treatment.[21]

Recommendation

Recommendations Applicable to All Interpretive Rules

1. An agency should not use an interpretive rule to create a standard independent of the statute or legislative rule it interprets. That is, noncompliance with an interpretive rule should not form an independent basis for action in matters that determine the rights and obligations of any member of the public.

2. An agency should afford members of the public a fair opportunity to argue for modification, rescission, or waiver of an interpretive rule. In determining whether to modify, rescind, or waive an interpretive rule, an agency should give due regard to any reasonable reliance interests.

3. It is sometimes appropriate for an agency, as an internal agency management matter, to direct some of its employees to act in conformity with an interpretive rule. But the agency should ensure that this does not interfere with the fair opportunity called for in Paragraph 2. For example, an interpretive rule could require officials at one level of the agency hierarchy to follow the interpretive rule, with the caveat that officials at a higher level can authorize a modification, rescission, or waiver of that rule. Agency review should be available when officials fail to follow interpretive rules they are properly directed to follow.

4. An agency should prominently state, in the text of an interpretive rule or elsewhere, that the rule expresses the agency's current interpretation of the law but that a member of the public will, upon proper request, be accorded a fair opportunity to seek modification, rescission, or waiver of the rule.

5. An interpretive rule should not include mandatory language unless the agency is using that language to describe an existing statutory or regulatory requirement, or the language is addressed to agency employees and will not interfere with the fair opportunity called for in Paragraph 2.

6. An agency should make clear to members of the public which agency officials are required to follow an interpretive rule and where to go within the agency to seek modification, rescission, or waiver from the agency.

7. An agency should instruct all employees engaged in an activity to which an interpretive rule pertains that, although the interpretive rule may contain mandatory language, they should refrain from making any statements suggesting that an interpretive rule may not be contested within the agency. Insofar as any employee is directed, as an internal agency management matter, to act in conformity with an interpretive rule, that employee should be instructed as to the expectations set forth in Paragraphs 2 and 3.

8. When an agency is contemplating adopting or modifying an interpretive rule, it should consider whether to solicit public participation, and, if so, what kind, before adopting or modifying the rule. Options for public participation include meetings or webinars with interested persons, advisory committee proceedings, and invitation for written input from the public with or without a response. In deciding how to proceed, the agency should consider:

a. The agency's own procedures for adopting interpretive rules.

b. The likely increase in useful information available to the agency from broadening participation, keeping in mind that non-regulated persons (regulatory beneficiaries and other interested persons) may offer different information than regulated persons and that non-regulated persons will often have no meaningful opportunity to provide input regarding interpretive rules other than at the time of adoption.

c. The likely increase in rule acceptance from broadening participation, keeping in mind that non-regulated persons will often have no opportunity to provide input regarding interpretive rules other than at the time of adoption, and that rule acceptance may be less likely if the agency is not responsive to input from interested persons.

d. Whether the agency is likely to learn more useful information by having a specific agency proposal as a focal point for discussion, or instead having a more free-ranging and less formal discussion.

e. The practicability of broader forms of participation, including invitation for written input from the public, keeping in mind that broader participation may slow the adoption of interpretive rules and may diminish resources for other agency tasks, including issuing interpretive rules on other matters.

9. If an agency does not provide for public participation before adopting or modifying an interpretive rule, it should consider offering an opportunity for public participation after adoption or modification. As with Paragraph 8, options for public participation include meetings or webinars with interested persons, advisory committee proceedings, and invitation for written input from the public with or without a response.

10. An agency may make decisions about the appropriate level of public participation interpretive rule-by-interpretive rule or by assigning certain procedures for public participation to general categories of interpretive rules. If an agency opts for the latter, it should consider whether resource limitations may cause some interpretive rules, if subject to pre-adoption procedures for public participation, to remain in draft for substantial periods of time. If that is the case, agencies should either (a) make clear to interested persons which draft interpretive rules, if any, should be understood to reflect current agency thinking; or (b) provide in each draft interpretive rule that, at a certain time after publication, the rule will automatically either be adopted or withdrawn.

11. All written interpretive rules affecting the interests of regulated parties, regulatory beneficiaries, or other interested parties should be promptly made available electronically and indexed, in a manner in which they may readily be found. Interpretive rules should also indicate the nature of the reliance that may be placed on them and the opportunities for modification, rescission, or waiver of them.

Recommendations Applicable Only to Those Interpretive Rules Amenable to Alternative Approaches or Analyses

12. Interpretive rules that lend themselves to alternative approaches or analyses include those that lay out several lawful options for the public but do not purport to be exhaustive. They may also include rules that, in setting forth decisional factors that are relevant to the meaning of a statute or regulation, leave open the possibility that other decisional factors might also be relevant. Typically, such rules speak at a general level, leaving space for informal adjustments and negotiation between the agency and interested persons about how the rule should be applied. Paragraphs 1-11 above apply with equal force to such rules. However, with respect to such rules, agencies should take additional steps to promote flexibility, as discussed below.

13. Agencies should afford members of the public a fair opportunity to argue for lawful approaches or analyses other than those set forth in an interpretive rule, subject to any binding requirements imposed upon agency employees as an internal management manner. The agency should explain that a member of the public may take a lawful approach different from the one set forth in the interpretive rule, request that the agency take such a lawful approach, or request that the agency endorse an alternative or additional analysis of the rule. The interpretive rule should also include the identity and contact information of officials to whom such a request should be made. Additionally, with respect to such rules, agencies should take further measures to promote such flexibility as provided in Paragraph 14.

14. In order to provide a fair opportunity for members of the public to argue for other lawful approaches or analyses, an agency should, subject to considerations of practicability and resource limitations and the priorities described in Paragraph 15, consider additional measures, including the following:Start Printed Page 38930

a. Promoting the flexible use of interpretive rules in a manner that still takes due account of needs for consistency and predictability. In particular, when the agency accepts a proposal for a lawful approach or analysis other than that set forth in an interpretive rule and the approach or analysis seems likely to be applicable to other situations, the agency should disseminate its decision and the reasons for it to other persons who might make the argument, to other affected interested persons, to officials likely to hear the argument, and to members of the public, subject to existing protections for confidential business or personal information.

b. Assigning the task of considering arguments for approaches or analyses other than those in an interpretive rule to a component of the agency that is likely to engage in open and productive dialogue with persons who make such arguments, such as a program office that is accustomed to dealing cooperatively with regulated parties and regulatory beneficiaries.

c. When officials are authorized to take an approach or endorse an analysis different from that in an interpretive rule but decline to do so, directing appeals of such a refusal to a higher-level official.

d. Investing in training and monitoring of personnel to ensure that they: (i) Treat parties' ideas for lawful approaches or analyses that are different from those in an interpretive rule in an open and welcoming manner; and (ii) understand that approaches or analyses other than those in an interpretive rule, if undertaken according to the proper internal agency procedures for approval and justification, are appropriate and will not have adverse employment consequences for them.

e. Facilitating opportunities for members of the public, including through intermediaries such as ombudspersons or associations, to propose or support approaches or analyses different from those in an interpretive rule and to provide feedback to the agency on whether its officials are giving reasonable consideration to such proposals.

15. Because measures to promote flexibility (including those listed in Paragraph 14) may take up agency resources, it will be necessary to set priorities for which interpretive rules are most in need of such measures. In deciding when to take such measures, the agency should consider the following, bearing in mind that these considerations will not always point in the same direction:

a. An agency should assign a higher priority to an interpretive rule the greater the rule's impact is likely to be on the interests of regulated parties, regulatory beneficiaries, and other interested parties, either because regulated parties have strong incentives to comply with the rule or because the rule practically reduces the stringency of the regulatory scheme compared to the status quo.

b. An agency should assign a lower priority to promoting flexibility in the use of a rule insofar as the rule's value to the agency and interested persons is primarily consistency rather than substantive content.

Administrative Conference Recommendation 2019-2

Agency Recruitment and Selection of Administrative Law Judges

Adopted June 13, 2019

The Administrative Procedure Act (APA) requires that hearings conducted under its main adjudication provisions [1] (sometimes known as “formal” hearings) be presided over by the agency itself, by “one or more members of the body which comprises the agency,” or by “one or more administrative law judges [(ALJs)] appointed under” 5 U.S.C. 3105.[2] Section 3105, in turn, authorizes “[e]ach agency” to “appoint as many [ALJs] as are necessary for proceedings required to be conducted in accordance” with those provisions.[3]

The process for appointing ALJs recently changed as a result of Executive Order (E.O.) 13,843.[4] Until that order was issued, agencies could a hire a new ALJ only from a certificate of qualified applicants (that is, a list of applicants eligible for hire) prepared by the Office of Personnel Management (OPM).[5] Each certificate generally had, for each opening, three applicants selected from a much larger register of applicants OPM deemed “qualified.” The “list of three,” as it was known, consisted of the three highest-scoring applicants based upon, among other things, an OPM-administered and -developed examination and panel interview process, as well as veterans' status.[6]

Under E.O. 13,843, newly appointed ALJs were removed from the “competitive service,” and were instead placed in what is known as the “excepted service.” [7] As a result, agencies now hire new ALJs directly—that is, without OPM's involvement—generally using whatever selection criteria and procedures they deem appropriate. E.O. 13,843 was premised on two primary bases. The first was the need to “mitigate” the concern that, after the Supreme Court's 2018 decision in Lucia v. Securities and Exchange Commission,[8] the OPM-administered process might unduly circumscribe an agency head's discretionary hiring authority under the Constitution's Appointments Clause.[9] Lucia held that the Securities and Exchange Commission's (SEC) ALJs were officers under the Appointments Clause, with the result being that—assuming that the SEC's ALJs are inferior rather than principal officers [10] —they must be appointed directly by the Commission itself as the head of a department rather than, as was being done, by SEC staff.[11] The second basis was the need to give “agencies greater ability and discretion to assess critical qualities in ALJ candidates . . . and [such candidates'] ability to meet the particular needs of the agency.” [12]

E.O. 13,843 requires only that ALJs be licensed attorneys. In addition, it identifies desirable qualities for ALJs, such as appropriate temperament, legal acumen, impartiality, and the ability to communicate their decisions, explicitly leaving it, however, to each agency to determine its own selection criteria. This Recommendation does not address the substantive hiring criteria that agencies should employ in selecting among ALJ candidates, though it does recommend that agencies publish the minimum qualifications and selection criteria for their ALJ positions. The selection criteria that an agency adopts might include, for example, litigation experience, experience as an adjudicator, experience in dispute resolution, experience with the subject-matter that comprises the agency's caseload, specialized technical skills, experience with case management systems, demonstrated legal research and legal writing skills, a dedicated work ethic, and strong leadership and communications skills.[13]

Each agency must decide not only which selection criteria will apply, but also which are mandatory and which are only desirable or preferred. Of course, agencies must also ensure that recruitment and selection comply with generally applicable legal requirements, such as those relating to veterans' preference and equal employment opportunity and government-wide initiatives to promote diversity and inclusion in the federal workforce.[14]

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Because the E.O. allows each agency to design its own selection procedures, each agency must now decide which of its officials will be involved in the selection process, how the process will be structured, how vacancies will be announced and otherwise communicated to potential applicants, and whether the agency will review writing samples or use some other evaluation method.

This Recommendation is built upon the view that there is no “one-size-fits-all” procedure for appointing ALJs and is designed to assist agencies that are in the initial stages of thinking through new procedures for appointing ALJs under the E.O.[15] Each agency will have to construct a system that is best suited to its particular needs. Doing so will require consideration of, among other things, the nature of its proceedings, the size of the agency's caseload, and the substance of the relevant statutes and the procedural rules involved in an agency's proceedings.

Recommendation

1. To ensure the widest possible awareness of their Administrative Law Judge (ALJ) vacancies and an optimal and broad pool of applicants, agencies should announce their vacancies on the government-wide employment website (currently operated by the Office of Personnel Management as USAJOBS), their own websites, and/or other websites that might reach a diverse range of potential ALJ applicants. Agencies that desire or require subject-matter, adjudicative, or litigation experience should also reach out to lawyers who practice in the field or those with prior experience as an adjudicator. Each agency should keep the application period open for sufficient time to achieve an optimal and broad pool of applicants.

2. Agencies should formulate and publish minimum qualifications and selection criteria for ALJ hiring. Those qualifications and criteria should include the factors specified in Executive Order 13,843 and the qualifications the agency deems important for service as an ALJ in the particular agency. The notice should distinguish between mandatory and desirable criteria.

3. Agencies should develop policies to review and assess ALJ applications. These policies might include the development of screening panels to select which applicants to interview, interview panels to select which applicants to recommend for appointment, or both kinds of panels. If used, such panels could include internal reviewers only or both internal and external reviewers, and could include overlapping members among the two types of panels or could include entirely different members. These policies might include procedures to evaluate applicants' writing samples. If used, such writing samples could be submitted with the applicants' initial applications, as part of a second round of submissions for applicants who meet the agencies' qualifications expectations, or as part of a proctored writing assignment in connection with an interview.

4. The guidelines and procedures for the hiring of ALJs should be designed and administered to ensure the hiring of ALJs who will carry out the functions of the office with impartiality and maintain the appearance of impartiality.

Administrative Conference Recommendation 2019-3

Public Availability of Agency Guidance Documents

Adopted June 13, 2019

Among their many activities, government agencies issue guidance documents that help explain their programs and policies or communicate other important information to regulated entities and the public. Members of the public should have ready access to these guidance documents so that they can understand how their government works and how their government relates to them. Agencies should manage their guidance documents consistent with legal requirements and principles of governmental transparency and accountability.

Guidance documents can take many forms.[1] They include what the Administrative Procedure Act (APA) calls “interpretative rules” and “general statements of policy,” which are two types of rules that are not required to undergo the notice-and-comment procedures applicable to legislative rules.[2] They may also include other materials considered to be guidance documents under other, separate definitions adopted by government agencies.[3] When managing the public availability of agency information in implementing this Recommendation, agencies should be clear about what constitutes guidance and what does not.

Several laws require agencies to make at least certain guidance documents available to the public. The Federal Records Act requires agencies to identify “records of general interest or use to the public that are appropriate for public disclosure, and . . . post[] such records in a publicly accessible electronic format.” [4] The Freedom of Information Act (FOIA) requires that agencies publish “statements of general policy or interpretations of general applicability formulated and adopted by the agency” in the Federal Register.[5] FOIA also requires that agencies “make available for public inspection in an electronic format . . . [specific] statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register,” as well as “administrative staff manuals and instructions to staff that affect a member of the public.” [6] Finally, Congress has occasionally enacted agency-specific requirements for posting guidance documents online. For example, the Food and Drug Administration is required to “maintain electronically and update and publish periodically in the Federal Register a list of guidance documents” and to ensure that “[a]ll such documents [are] made available to the public.” [7]

The Administrative Conference has recommended that various types of guidance documents be made available online. Recommendation 2017-5, Agency Guidance Through Policy Statements, provided that “[a]ll written policy statements affecting the interests of regulated parties, regulatory beneficiaries, or other interested parties should be promptly made available electronically and indexed, in a manner in which they may readily be found.” [8] Start Printed Page 38932Recommendation 2019-1 includes identical language directing agencies to do the same for interpretive rules.[9] Similarly, Recommendation 2018-5, Public Availability of Adjudication Rules, urged agencies to “provide updated access on their websites to all sources of procedural rules and related guidance documents and explanatory materials that apply to agency adjudications.” [10]

Although many agencies do post guidance documents online, in recent years concerns have emerged about how well organized, up to date, and easily accessible these documents are to the public. At various times, the Office of Management and Budget (OMB) has instructed agencies on their management of guidance documents.[11] The United States Government Accountability Office has conducted an audit that highlights the management challenges associated with agency dissemination of guidance documents online.[12] Several legislative proposals have been introduced (but not enacted) to create standards for public disclosure of guidance documents.[13]

Agencies should be cognizant that the primary goal of online publication is to facilitate access to guidance documents by regulated entities and the public. In deciding how to manage the availability of their guidance documents, agencies must be mindful of how members of the public will find the documents they need. Four principles for agencies to consider when developing and implementing plans to track and disclose their guidance documents to the public include: (a) Comprehensiveness (whether all relevant guidance documents are available), (b) currency (whether guidance documents are up to date), (c) accessibility (whether guidance documents can be easily located by website users), and (d) comprehensibility (whether website users are likely to be able to understand the information they have located).

With these principles in mind, this Recommendation calls on agencies to consider opportunities for improving the public availability of their guidance documents. Each agency must decide which guidance documents to post online and how to present them in a manner that will ensure their availability and usefulness for regulated parties and the public. The Recommendation provides best practices to guide agencies to make their guidance documents more publicly available. These best practices are intended to be adaptable to fit agency-specific circumstances.[14] The Administrative Conference notes that each agency is different, and the practices outlined in this Recommendation may be employed with flexibility as necessary (perhaps based on factors such as an agency's internal structures, available resources, types and volume of documents, the parties it regulates, and its end users) so that guidance documents are made available to the public in a logical and suitably comprehensive manner.

Recommendation

Procedures for Managing Guidance Documents

1. Agencies should develop written procedures pertaining to their internal management of guidance documents.

a. The procedures should include:

i. A description of relevant categories or types of guidance documents subject to the procedures; and

ii. examples of specific materials not subject to the procedures, as appropriate.

b. The procedures should address measures to be taken for the:

i. Development of guidance documents, including any opportunity for public comment;

ii. publication and dissemination of draft or final guidance documents; and

iii. periodic review of existing guidance documents.

c. Agency procedures should indicate the extent to which any of the measures created or identified in response to Paragraph 1(b) should vary depending on the type of guidance document or its category, as defined by any provisions in agency procedures responsive to Paragraph 1(a).

2. All relevant agency staff should receive training in agencies' guidance document management procedures.

3. Agencies should develop and apply appropriate internal controls to ensure adherence to guidance document management procedures.

4. To facilitate internal tracking of guidance documents, as well as to help members of the public more easily identify relevant guidance documents, agencies should consider assigning unique identification numbers to guidance documents covered by their written guidance procedures. Once a guidance identification number has been assigned to a guidance document, it should appear on that document and be used to refer to the document whenever it is listed or referenced on the agency's website, in public announcements, or in the Federal Register or the Code of Federal Regulations.

5. Using appropriate metrics, agencies should periodically review their guidance document management procedures and their implementation in order to assess their performance in making guidance documents available as well as to identify opportunities for improvement.

6. Agencies should provide opportunities for public feedback on their efforts to promote the public availability of their guidance documents.

Guidance Documents on Agency Websites

7. Agencies should maintain a page on their websites dedicated to informing the public about the availability of guidance documents and facilitating access to those documents. Such guidance document web pages should include:

a. Agencies' written guidance document management procedures pursuant to Paragraph 1, if developed;

b. Plain language explanations (sometimes known as “explainers”) that define guidance documents, explain their legal effects, or give examples of different types of guidance documents;

c. A method for users to find relevant guidance documents, which might include:

i. Comprehensively listing and indexing agency guidance documents;

ii. Displaying links to pages where guidance documents are located, which could be organized by topic, type of guidance document, agency sub-division, or some other rubric; or

iii. A dedicated search engine; and

d. Contact information or a comment form to facilitate public feedback related to potentially broken links, missing documents, or other errors or issues related to the agency's procedures for the development, publication, or disclosure of its guidance documents.

8. Agencies should provide the public with access to a comprehensive set of its guidance documents—either on the dedicated guidance document web page or other web pages—in accordance with its written procedures.

a. Agency websites should include, at minimum, (1) all guidance documents required by law to be published in the Federal Register and (2) all other guidance documents required by law to otherwise be made publicly available.

b. Guidance documents should generally be made available in downloadable form.Start Printed Page 38933

c. Links to downloadable copies of agencies' Small Entity Compliance Guides—issued in accordance with the Small Business Regulatory Enforcement Fairness Act [15] —should be provided.

d. Agency websites should include relevant information for each guidance document, such as its title, any corresponding regulatory or statutory provision that the guidance document relates to or interprets (if applicable), the date of issuance, and any assigned identifying number.

e. Agencies should keep guidance documents on their websites current. To the extent a website contains obsolete or modified guidance documents, it should include notations indicating that such guidance documents have been revised or withdrawn. To the extent feasible, each guidance document should be clearly marked within the document to show whether it is current and identify its effective date, and, if appropriate, its rescission date. If a guidance document has been rescinded, agencies should provide a link to any successor guidance document.

9. Although not every agency website will have the same population of users, agency websites should be designed to ensure that they are as helpful to the end user as possible. In particular, agencies should ensure:

a. Simple words, such as “guidance,” are used in describing web pages that discuss or list guidance documents;

b. Agency guidance document web pages are easy to find from their website's home page, through such techniques as a linked tab or entry in a pull-down menu;

c. The search engine on agency websites works effectively for finding relevant guidance information;

d. Guidance documents, when listed on web pages, are displayed in a manner that helps the public find a particular document, by using such techniques as indexing, tagging, or sortable tables; and

e. Websites displaying guidance documents are kept up to date, with any broken links fixed and any amended or withdrawn documents clearly labeled as such.

10. To make guidance documents accessible to users who are searching for information elsewhere on agency websites, agencies should strive to ensure that clearly labeled links to all guidance documents related to specific rules, issues, or programs are easily found in the corresponding section of the website where users are likely to find that information especially helpful.

Public Notice of Guidance Documents

11. Agencies should undertake affirmative measures to alert interested members of the public to new and revised guidance documents. Such measures could include, among other things, establishing public email distribution lists to disseminate alerts about new or revised guidance documents, using social media to disseminate guidance documents and related information, having agency staff speak about guidance documents at relevant conferences or meetings, or preparing printed pamphlets or other hard-copy documents. Even when not required to do so by law, agencies should consider publishing information about new or revised guidance documents in the Federal Register.

12. Agencies should consider providing descriptive references (such as links, if possible) to relevant guidance documents in appropriate sections of the Code of Federal Regulations, stating where the public can access the documents.

Administrative Conference Recommendation 2019-4

Revised Model Rules for Implementation of the Equal Access to Justice Act

Adopted June 13, 2019

[Note from the Office of the Chairman: Recommendation 2019-4 immediately follows; however, the Revised Model Rules for Implementation of the Equal Access to Justice Act, which were adopted by the Assembly as an appendix to Recommendation 2019-4, are published elsewhere in this issue of the Federal Register. Federal agencies should consider the Revised Model Rules when adopting or revising their own rules in order to promote the uniformity of procedure contemplated by the Equal Access to Justice Act, and in discharging their obligation to consult with the Chairman of the Administrative Conference of the United States under 5 U.S.C. 504(c)(1).]

The Equal Access to Justice Act (EAJA), first enacted in 1980, authorizes the award of attorney fees and other expenses to certain individuals, small businesses, and other entities that prevail against the federal government in judicial proceedings and certain adversarial agency adjudicative proceedings, when the position of the government is not substantially justified.[1] The stated purpose of EAJA is to, among other things, “diminish the deterrent effect of seeking review of, or defending against, governmental action by providing” the award of certain costs and fees against the United States.[2]

In the case of agency adjudications, agencies must establish “uniform procedures for the submission and consideration of applications for an award of fees and other expenses” “[a]fter consultation with the Chairman of the Administrative Conference of the United States.” [3] To carry out this statutory charge, the Conference's Chairman issued model rules in 1981 to help agencies establish uniform procedures for the submission and consideration of EAJA applications.[4] Adoption of these model rules was intended to facilitate consultation between agencies and the Chairman of the Conference as required by 5 U.S.C. 504.[5] In 1986, the Chairman revised the 1981 model rules following the amendment and reauthorization of EAJA.[6] Numerous agencies adopted the 1981 and 1986 model rules, including the Federal Trade Commission, the Consumer Financial Protection Bureau, the Securities and Exchange Commission, and the National Labor Relations Board.[7]

In light of the amendments to EAJA made since 1986,[8] as well as evolving adjudicative practices since that time, the Conference's Chairman decided to review and, as necessary, revise the 1986 model rules, just as he recently did in the case of the Model Adjudication Rules, which govern agency adjudication procedures generally.[9] Rather than simply revise the rules himself, the Chairman decided to put the rules before the membership of the Conference—first through an ad hoc committee of all interested members—for review so as to assure consideration of as broad a range of views as possible. The Conference considered, among other things, EAJA rules that agencies have issued since the promulgation of the 1986 model rules. Where appropriate, the Conference updated the model rules to reflect evolving practice and the latest EAJA amendments and made additional revisions to promote greater consistency and clarity. The Conference's revised model rules appear in the appendix to this Recommendation.

Substantial changes have been made to the 1986 model rules. They include, most notably, the elimination of most of what was Subpart A. Subpart A of the 1986 model rules consisted of general provisions addressing, among other things, when EAJA applies, eligibility of applicants, proceedings covered, standards for awards, allowable fees and expenses, rulemaking on maximum rates for attorney fees, awards against other agencies, Start Printed Page 38934and delegations of authority. The Conference recommends the elimination of these provisions because they address the substantive standard for EAJA awards and other such matters beyond the Conference's statutory charge identified above. Other changes to the rules, including the addition of a definitions section, have also been made to improve their clarity and comprehensibility.

Recommendation

The 1986 model rules should be replaced with the revised model rules for the implementation of the Equal Access to Justice Act that appear in the attached appendix. [Note from the Office of the Chairman: The appendix to Recommendation 2019-4 is published elsewhere in this issue of the Federal Register.]

End Supplemental Information

Footnotes

1.  In accordance with standard parlance, this Recommendation uses the term “interpretive” in place of the APA's word “interpretative.”

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3.  Attorney General's Manual on the Administrative Procedure Act 30 n.3 (1947).

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5.  See, e.g., Nicholas R. Parrillo, Federal Agency Guidance: An Institutional Perspective (Oct. 12, 2017) (report to the Admin. Conf. of the U.S.), https://www.acus.gov/​report/​agency-guidance-final-report.

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6.  See, e.g., Admin. Conf. of the U.S., Recommendation 2017-5, Agency Guidance Through Policy Statements, 82 FR 61,734 (Dec. 29, 2017); Admin. Conf. of the U.S., Recommendation 1992-2, Agency Policy Statements, 57 FR 30,103 (July 8, 1992); Admin. Conf. of the U.S., Recommendation 1976-5, Interpretive Rules of General Applicability and Statements of General Policy, 41 FR 56,769 (Dec. 30, 1976).

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7.  See Recommendation 2017-5, supra note 6, ¶ 9.

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8.  Perez v. Mortg. Bankers Ass'n, 135 S. Ct. 1199, 1208 (2015) (citing Chrysler Corp. v. Brown, 441 U.S. 281, 302 n.31 (1979) (citing the Attorney General's Manual, supra note 3)).

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9.  Recommendation 2017-5, supra note 6, ¶ 2; see also Recommendation 1992-2, supra note 6, ¶ II.B.

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10.  See Blake Emerson & Ronald M. Levin, Agency Guidance Through Interpretive Rules: Research and Analysis 33-34 (May 28, 2019) (report to the Admin. Conf. of the U.S.), https://www.acus.gov/​report/​agency-guidance-through-interpretive-rules-final-report.

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11.  Recommendation 2017-5, supra note 6, ¶ 1.

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12.  Id. ¶ 5; accord Office of Mgmt. & Budget, Exec. Office of the President, Final Bulletin for Agency Good Guidance Practices, 72 FR 3,432, 3,440 (Jan. 25, 2007).

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14.  Emerson & Levin, supra note 10, at 20-23; Parrillo, supra note 5, at 23-25; see also Ronald M. Levin, Rulemaking and the Guidance Exemption, 70 Admin. L. Rev. 263, 317-19, 346-53 (2018).

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15.  519 U.S. 452 (1997).

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16.  Id. at 461; compare Perez, 135 S. Ct. at 1211-12 (Scalia, J., concurring in the judgment) (stating that because of “judge-made doctrines of deference . . . [a]gencies may now use [interpretive] rules not just to advise the public, but also to bind them”), with id. at 1208 n.4 (opinion of the Court) (“Even in cases where an agency's interpretation receives Auer deference, however, it is the court that ultimately decides whether a given regulation means what the agency says.”). The Supreme Court is currently considering whether to overrule Auer in Kisor v. Wilkie, 139 S. Ct. 657 (2018) (granting certiorari). For reasons explained in the text, the present recommendations do not depend on which view of Auer one favors, or on what the Court may decide in Kisor.

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17.  See Emerson & Levin, supra note 10, at 25.

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18.  Parrillo, supra note 5, at 25.

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19.  See Emerson & Levin, supra note 10, at 38-41.

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20.  This Recommendation uses “interested person” rather than “stakeholder,” which Recommendation 2017-5, supra note 6, uses. The Conference believes that “interested person” is more precise than “stakeholder” and that “stakeholder,” as used in Recommendation 2017-5, should be understood to mean “interested person.”

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21.  See Emerson & Levin, supra note 10, at 42-44.

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3.  Id. § 3105.

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4.  Exec. Order No. 13,843, 83 FR 32,755 (July 13, 2018) (issued July 10, 2018); see also Memorandum from Jeff T.H. Pon, Dir., Office of Pers. Mgmt., to Heads of Exec. Dep'ts and Agencies, Executive Order—Excepting Administrative Law Judges from the Competitive Service (July 10, 2018), https://chcoc.gov/​print/​9282 (noting that “OPM's regulations continue to govern some aspects of ALJ employment”).

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5.  This was the process for hiring new ALJs. Many agencies hired incumbent ALJs from other agencies under a process known as “interagency transfer.” This process no longer exists, but agencies are still free to hire ALJs from other agencies using their own process.

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6.  See Admin. Conf. of the U.S., Recommendation 1992-7, The Federal Administrative Judiciary, 57 FR 61,759, 61,761 (Dec. 29, 1992). Qualified veterans received extra points that “had an extremely large impact, given the small range in unadjusted scores.” Id. As the Administrative Conference noted in 1992, “application of the veterans' preference has almost always been determinative in the ALJ selection system.” Id.

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7.  “[T]he `excepted service' consists of those civil service positions which are not in the competitive service or the Senior Executive Service.” 5 U.S.C. 2103.

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8.  138 S. Ct. 2044 (2018).

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9.  See Exec. Order No. 13,843, supra note 4, § 1.

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10.  The Lucia majority expressly refrained from deciding whether the SEC's ALJs are principal or inferior officers, but did note that “[b]oth the Government and Lucia view the SEC's ALJs as inferior officers and acknowledge that the Commission, as a head of department, can constitutionally appoint them.” Lucia, 138 S. Ct. at 2051 n.3.

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11.  See id. This Recommendation takes no position on constitutional questions.

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12.  Exec. Order No. 13,843, supra note 4, § 1.

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13.  See generally Jack M. Beermann and Jennifer L. Mascott, Federal Agency ALJ Hiring After Lucia and Executive Order 13843 (May 29, 2019) (report to the Admin. Conf. of the U.S.), https://www.acus.gov/​report/​final-research-report-federal-agency-alj-hiring-after-lucia-and-eo-13843. This report is based in part upon interviews with officials at a number of agencies, including those employing the vast majority of ALJs.

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14.  See, e.g., Exec. Order No. 13,583, 76 FR 52,847 (Aug. 18, 2011). As far as veterans' preference is concerned, Executive Order 13,843 provides that “each agency shall follow the principle of veteran preference as far as administratively feasible.” Exec. Order No. 13,843, supra note 4, § 3.

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15.  Some agencies have already publicly disseminated guidance. See, e.g., Secretary's Order 07-2018, Procedures for Appointments of Administrative Law Judges for the Department of Labor, 83 FR 44,307 (Aug. 30, 2018); U.S. Dep't of Health & Human Serv.'s, Administrative Law Judge Appointment Process Under the Excepted Service (Nov. 29, 2018), https://www.hhs.gov/​sites/​default/​files/​alj-appointment-process.pdf.

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1.  To allow agencies flexibility to manage their varied and unique types of guidance documents, this Recommendation does not seek to provide an all-encompassing definition of guidance documents. This Recommendation is addressed, at a minimum, to those guidance documents required by law to be published in the Federal Register and any other guidance document required by law to be made publicly available. See infra notes 4-7 and accompanying text.

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2.  Interpretative rules and general statements of policy are “rules” under the APA. See 5 U.S.C. 551(4), 553. Although the APA does not define these two terms, the Attorney General's Manual on the Administrative Procedure Act defines “interpretative rules” as “rules or statements issued by an agency to advise the public of the agency's construction of the statutes and rules which it administers,” and “general statements of policy” as “statements issued by an agency to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power.” Attorney General's Manual on the Administrative Procedure Act 30 n.3 (1947). In accordance with standard parlance, this Recommendation uses the term “interpretive” in place of the APA's word “interpretative.”

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3.  See Cary Coglianese, Public Availability of Agency Guidance Documents (May 15, 2019) (report to the Admin. Conf. of the U.S.), https://www.acus.gov/​report/​consultant-report-public-availability-agency-guidance-documents.

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5.  5 U.S.C. 552(a)(1)(D) (emphasis added). To the extent that the documents an agency considers guidance would fall within any of the nine FOIA exceptions, such as “records or information compiled for law enforcement purposes,” 5 U.S.C. 552(b)(7), agencies would not be required to disclose them.

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6.  5 U.S.C. 552(a)(2). “Agencies often accomplish this electronic availability requirement by posting records on their FOIA websites in a designated area known as a `FOIA Library.' ” U.S. Dep't of Justice, Office of Information Policy, Guide to the Freedom of Information Act: Proactive Disclosures 6 (2019 ed.), available at https://www.justice.gov/​oip/​foia-guide/​proactive_​disclosures/​download;​ see also E-Government Act, Public Law 107-347, 206, 116 Stat. 2899, 2915 (Dec. 17, 2002) (codified at 44 U.S.C. 3501 note) (requiring agencies, to the extent practicable, to publish online documents that FOIA requires be published in the Federal Register); Small Business Regulatory Enforcement Fairness Act, Public Law 104-121, 212, 110 Stat. 847, 858 (Mar. 29, 1996) (codified at 5 U.S.C. 601 note) (requiring agencies to produce a “small entity compliance guide” for some legislative rules and post those guides “in an easily identified location on the website of the agency”).

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8.  Admin. Conf. of the U.S., Recommendation 2017-5, Agency Guidance Through Policy Statements, ¶ 12, 82 FR 61,728, 61,737 (Dec. 29, 2017).

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9.  Admin. Conf. of the U.S., Recommendation 2019-1, Agency Guidance Through Interpretive Rules, 84 FR __.

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10.  Admin. Conf. of the U.S., Recommendation 2018-5, Public Availability of Adjudication Rules, ¶ 1, 84 FR 2142, 2142 (Feb. 6, 2019).

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11.  For example, OMB Bulletin 07-02 directs Executive Branch departments and agencies to provide a current list of significant guidance documents in effect on their websites. Office of Mgmt. & Budget, Final Bulletin for Agency Good Guidance Practices, 72 FR 3432 (Jan. 25, 2007); Office of Mgmt. & Budget, Memorandum No. M-07-07, Issuance of OMB's “Final Bulletin for Agency Good Guidance Practices” (Jan. 18, 2007), https://www.whitehouse.gov/​sites/​whitehouse.gov/​files/​omb/​memoranda/​2007/​m07-07.pdf;​ see also Office of Mgmt. & Budget, Memorandum No. M-19-14, Guidance on Compliance with the Congressional Review Act (Apr. 11, 2019), https://www.whitehouse.gov/​wp-content/​uploads/​2019/​04/​M-19-14.pdf (calling upon both executive and independent regulatory agencies to send certain pre-publication guidance materials to the Office of Information and Regulatory Affairs).

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12.  U.S. Gov't Accountability Office, GAO-15-368, Regulatory Guidance Processes: Selected Departments Could Strengthen Internal Control and Dissemination Practices (2015).

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13.  The most notable of the pending legislation would require agencies to publish guidance documents on their websites and a centralized website selected by OMB. See Guidance Out of Darkness Act, S. 380, 116th Cong. (2019); S. Rep. No. 116-12 (2019); Guidance Out of Darkness Act, H.R. 4809, 115th Cong. (2018); H.R. Rep. No. 115-972 (2018); see also H.R. 2142, 116th Cong. (2019) (requiring the creation of a centralized website for small business compliance guides). For other legislation, see Coglianese, supra note 3, at 6-7.

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14.  For example, even the term “agency” as used in the Recommendation can be construed to address either agencies or sub-agencies within larger departments. Jennifer L. Selin & David E. Lewis, Admin. Conf. of the U.S., Sourcebook of United States Executive Agencies 11 (2d ed. 2018), available at https://www.acus.gov/​publication/​sourcebook-united-states-executive-agencies-second-edition.

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15.  Public Law 104-121, 212, 110 Stat. 847, 858 (Mar. 29, 1996) (codified at 5 U.S.C. 601 note).

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2.  Equal Access to Justice Act, Public Law 96-481, 202(b)(1), 94 Stat. 2321, 2325 (1980) (codified as amended at 5 U.S.C. 504 and 28 U.S.C. 2412).

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4.  Admin. Conf. of the U.S., Equal Access to Justice Act: Agency Implementation, 46 FR 32,900 (June 25, 1981).

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5.  Admin. Conf. of the U.S., Implementation of the Equal Access to Justice Act: Requests for Comments on Draft Model Rules, 46 FR 15,895 (Mar. 10, 1981).

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6.  Admin. Conf. of the U.S., Model Rules for Implementation of the Equal Access to Justice Act: Issuance of Final Revised Model Rules, 51 FR 16,659 (May 6, 1986).

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7.  See Equal Access to Justice Act Implementation Rule, 79 FR 7,569 (Consumer Fin. Prot. Bureau Feb. 10, 2014) (codified as amended at 12 CFR pt. 1071); Equal Access to Justice Rules, 54 FR 53,050 (Sec. Exch. Comm'n Dec. 27, 1989) (codified as amended at 17 CFR pt. 200-01); Procedural Rules Implementing Equal Access to Justice Act, 51 FR 36,223 (Nat'l Labor Relations Bd. Oct. 9, 1986) (codified as amended at 29 CFR pt. 102); Procedural Rules Amendments, 51 FR 17,732 (Nat'l Labor Relations Bd. May 15, 1986); Procedural Rules; Miscellaneous Revisions and Corrections, 50 FR 53,302 (Fed. Trade Comm'n Dec. 31, 1985) (codified as amended at 16 CFR pt. 0-5); Equal Access to Justice Rules, 47 FR 609 (Sec. Exch. Comm'n Jan. 6, 1982); Rules Governing Recovery of Awards Under Equal Access to Justice Act, 46 FR 48,910 (Fed. Trade Comm'n Oct. 5, 1981).

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8.  Act of Jan. 4, 2011, Public Law 111-350, 5, 124 Stat. 3677, 3841; Small Business Regulatory Enforcement Fairness Act of 1996, 104 Public Law 121, 231, 110 Stat. 847, 862; Religious Freedom Restoration Act of 1993, 103 Public Law 141, 4, 107 Stat. 1488, 1489; Education and Savings Act of 1988, Public Law 100-647, 6239, 102 Stat. 3342, 3746.

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9.  Admin. Conf. of the U.S., Model Adjudication Rules, 83 FR 49,530 (Oct. 2, 2018).

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[FR Doc. 2019-16946 Filed 8-7-19; 8:45 am]

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